GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 2007

S                                                                                                                                                    D

SENATE DRS75465-MD-71B  (08/15)

 

 

 

 

 

 

Short Title:     NC Citizen Protection Act.

(Public)

Sponsors:

Senator Pittenger.

Referred to:

 

 

 

A BILL TO BE ENTITLED

AN ACT creating the north carolina citizen protection act.

The General Assembly of North Carolina enacts:

 

PART I. SHORT TITLE

 

SECTION 1.  This act shall be known and may be cited as the "North Carolina Citizen Protection Act." All requirements of this act concerning immigration or the classification of immigration status shall be construed in conformity with federal immigration law.

 

PART II. CREATING THE CRIME OF UNLAWFUL TRANSPORTATION OF AN ILLEGAL ALIEN AND THE CRIME OF UNLAWFUL CONCEALMENT OF AN ILLEGAL ALIEN

 

SECTION 2.(a)  Chapter 14 of the General Statutes is amended by adding a new Article to read:

"Article 62.

"Illegal Aliens.

" 14-462.  Unlawful transportation of an alien; penalty.

(a)       It shall be unlawful for any person to knowingly transport or attempt to transport within this State any illegal alien that the person knows has entered or remained in the United States in violation of law for the purpose of avoiding discovery of the alien by persons or agencies authorized to enforce immigration laws. This section shall not apply to conduct permitted by federal law.

(b)       Any person who violates this section shall be guilty of unlawful transportation of an illegal alien, which offense shall be punishable as a Class G felony.

" 14-463.  Unlawful concealment of an alien; penalty.

(a)       It shall be unlawful for any person to knowingly conceal or shelter from detection in any place, including any building or means of transportation, any illegal alien that the person knows has entered or remained in the United States in violation of law for the purpose of avoiding discovery of the alien by persons or agencies authorized to enforce immigration laws. This section shall not apply to conduct permitted by federal law.

(b)       Any person who violates this section shall be guilty of unlawful transportation of an illegal alien, which offense shall be punishable as a Class G felony."

 

PART III. REQUIRING COUNTIES AND CITIES TO REGISTER AND PARTICIPATE IN THE FEDERAL WORK AUTHORIZATION PROGRAM TO VERIFY INFORMATION ON ALL NEW EMPLOYEES; RESTRICTING ELIGIBILITY FOR AWARD OF PUBLIC CONTRACTS TO CONTRACTORS THAT USE THE FEDERAL WORK AUTHORIZATION PROGRAM

 

SECTION 3.(a)  Article 5 of Chapter 153A of the General Statutes is amended by adding a new section to read:

" 153A-99.1.  County verification of employee work authorization.

(a)       Each county shall register and participate, or attempt to register and participate, in the federal work authorization program to verify work authorization information of all new employees.

(b)       As used in this section, the term 'federal work authorization program' means any of the electronic verification of work authorization programs operated by the United States Department of Homeland Security or any equivalent federal work authorization program operated by the United States Department of Homeland Security to verify information of newly hired employees, pursuant to the Immigration Reform and Control Act of 1986 (IRCA), Public Law 99-603.

(c)       This section shall be enforced without regard to race, religion, gender, ethnicity, or national origin."

SECTION 3.(b)  Article 7 of Chapter 160A of the General Statutes is amended by adding a new section to read:

" 160A-169.1.  City verification of employee work authorization.

(a)       Each city shall register and participate, or attempt to register and participate,  in the federal work authorization program to verify work authorization information of all new employees.

(b)       As used in this section, the term 'federal work authorization program' means any of the electronic verification of work authorization programs operated by the United States Department of Homeland Security or any equivalent federal work authorization program operated by the United States Department of Homeland Security to verify information of newly hired employees, pursuant to the Immigration Reform and Control Act of 1986 (IRCA), Public Law 99-603.

(c)       This section shall be enforced without regard to race, religion, gender, ethnicity, or national origin."

SECTION 3.(c)  Article 2 of Chapter 153A of the General Statutes is amended by adding a new section to read:

" 153A-15.2.  Contractors must use federal work authorization program.

(a)       No county may enter into a contract for the physical performance of services within this State unless the contractor registers and participates, or attempts to register and participate, in the federal work authorization program to verify information of all new employees.

(b)       As used in this section, the term 'federal work authorization program' means any of the electronic verification of work authorization programs operated by the United States Department of Homeland Security or any equivalent federal work authorization program operated by the United States Department of Homeland Security to verify information of newly hired employees, pursuant to the Immigration Reform and Control Act of 1986 (IRCA), Public Law 99-603."

SECTION 3.(d)  Article 2 of Chapter 160A of the General Statutes is amended by adding a new section to read:

" 160A-12.1.  Contractors must use federal work authorization program.

(a)       No city may enter into a contract for the physical performance of services within this State unless the contractor registers and participates, or attempts to register and participate, in the federal work authorization program to verify information of all new employees.

(b)       As used in this section, the term 'federal work authorization program' means any of the electronic verification of work authorization programs operated by the United States Department of Homeland Security or any equivalent federal work authorization program operated by the United States Department of Homeland Security to verify information of newly hired employees, pursuant to the Immigration Reform and Control Act of 1986 (IRCA), Public Law 99-603."

SECTION 3.(e)  G.S. 143-129 is amended by adding a new subsection to read:

"(i)       No contract may be awarded by any board or governing body of the State, institution of the State government, or any political subdivision of the State, unless the contractor registers and participates, or attempts to register and participate,  in the federal work authorization program to verify information of all new employees. As used in this subsection, the term 'federal work authorization program' means any of the electronic verification of work authorization programs operated by the United States Department of Homeland Security or any equivalent federal work authorization program operated by the United States Department of Homeland Security to verify information of newly hired employees, pursuant to the Immigration Reform and Control Act of 1986 (IRCA), Public Law 99-603."

SECTION 3.(f)  There is created in the Office of the Governor the "E-Verify Participation Assistance Fund." Monies in this fund shall be used to assist counties and cities with training and other costs associated with implementing G.S. 153A-99.1 and G.S. 160A-169.1. The Director of the Budget shall, in his discretion, allocate monies in the Fund to cities and counties of this State.

SECTION 3.(g)   There is appropriated from the General Fund to the E-Verify Participation Assistance Fund the sum of three hundred twenty-four thousand dollars ($324,000) for the 2008-2009 fiscal year to implement Sections 3(a) and 3(b) of this act.

 

PART IV. VERIFICATION OF LAWFUL PRESENCE TO RECEIVE PUBLIC BENEFITS

 

SECTION 4.(a)  Chapter 108A of the General Statutes is amended by adding a new Article to read:

"Article 7.

"Illegal Aliens.

" 108A-112.  Verification of lawful presence required to receive public benefits; definitions; exceptions.

(a)       The following definitions apply in this Article:

(1)       'Emergency medical condition.' - As defined in 42 U.S.C. 1396b(v)(3).

(2)       'Federal public benefit.' - As defined in 8 U.S.C. 1611.

(3)       'SAVE.' - Systematic Alien Verification of Entitlement program of the United States Department of Homeland Security, or a successor program.

(4)       'State or local agency.' - Any State agency, county, city, consolidated city-county, or other local political subdivision or agency of local government that administers State or local benefits or federal benefits.

(5)       'State or local public benefit.' - As defined in 8 U.S.C. 1621.

(b)       Except as otherwise provided in subsection (d) of this section or where exempted by federal law, every State or local agency shall verify the lawful presence in the United States of any natural person 18 years of age or older who has applied for State or local public benefits or for federal public benefits that are administered by an agency or a political subdivision of this State.

(c)       This section shall be enforced without regard to race, religion, gender, ethnicity, or national origin.

(d)       Verification of lawful presence under this section shall not be required for:

(1)       Any purposes for which lawful presence in the United States is not required by law, ordinance, or regulation;

(2)       Assistance for health care items and services that are necessary for the treatment of an emergency medical condition of the alien involved and are not related to an organ transplant procedure;

(3)       Short-term, noncash, in-kind emergency disaster relief;

(4)       Public health assistance for immunizations with respect to immunizable diseases and for testing and treatment of symptoms of communicable diseases whether or not the symptoms are caused by a communicable disease;

(5)       Programs, services, or assistance such as soup kitchens, crisis counseling and intervention, and short-term shelter specified by the United States Attorney General, in the United States Attorney General's sole and unreviewable discretion after consultation with appropriate federal agencies and departments, which:

a.         Deliver in-kind services at the community level, including through public or private nonprofit agencies;

b.         Do not condition the provision of assistance, the amount of assistance provided, or the cost of assistance provided on the individual recipient's income or resources; and

c.         Are necessary for the protection of life or safety.

(6)       Prenatal care.

(e)       Verification of lawful presence in the United States by a State or local agencyrequired to make verification shall be as follows:

(1)       The applicant for public benefit must execute an affidavit that the applicant is a United States citizen or legal permanent resident of the United States and is 18 years of age or older; or

(2)       The applicant must execute an affidavit that the applicant is a qualified alien or nonimmigrant under the federal Immigration and Nationality Act and is 18 years of age or older and lawfully present in the United States.

(f)        For any applicant who has executed an affidavit that the applicant is an alien lawfully present in the United States, the State or local agency shall verify eligibility for benefits through the SAVE program operated by the United States Department of Homeland Security or a successor program designated by the United States Department of Homeland Security. Until eligibility verification is made, the affidavit may be presumed to be proof of lawful presence for the purposes of this section.

(g)       Any person who knowingly and willfully makes a false, fictitious, or fraudulent statement of representation in an affidavit executed under subsection (e) of this section shall be punished as a Class H felon.

(h)       State or local agencies may adopt rules providing for waiver from this section to improve efficiency or reduce delay in the verification process or to provide for adjudication of unique individual circumstances where the verification procedures under this section would impose unusual hardship on a legal resident of this State.

(i)        It shall be unlawful for any State or local agency to provide any State, local, or federal benefit in violation of this section. Each State or local agency shall provide an annual report to the General Assembly and the Governor with respect to the State or local agency's compliance with this section. The report shall be submitted not later than March 1 of each year.

(j)        All errors and significant delays by SAVE shall be reported by the affected State or local agency to the United States Department of Homeland Security and to the Secretary of State to ensure that the application of SAVE is not wrongfully denying benefits to legal residents of this State.

(k)       Notwithstanding subsection (g) of this section, an applicant for federal benefits or for State or local benefits shall not be guilty of any crime for executing an affidavit attesting to lawful presence in the United States that contains a false statement if the affidavit is not required by this section."

 

PART V. NO INCOME TAX DEDUCTION FOR COMPENSATION PAID TO ILLEGAL IMMIGRANTS; WITHHOLDING ON COMPENSATION PAID TO ILLEGAL IMMIGRANTS

 

SECTION 5.(a)  G.S. 105-130.2 is amended by adding a new subdivision to read:

" 105-130.2.  Definitions.

The following definitions apply in this Part:

(7)       Unauthorized alien. - Defined in 8 U.S.C. 1324a(h)(3)."

SECTION 5.(b)  G.S. 105-130.5(a) is amended by adding a new subdivision to read:

"(a)      The following additions to federal taxable income shall be made in determining State net income:

(21)     To the extent not included in federal taxable income, any amount in excess of six hundred dollars ($600.00) that is paid to an unauthorized alien as wages or compensation unless the unauthorized alien is not directly compensated or employed by the taxpayer."

SECTION 5.(c)  G.S. 105-134.1 is amended by adding a new subdivision to read:

" 105-134.1  Definitions.

The following definitions apply in this Part:

(20)     Unauthorized alien. - Defined in G.S. 105-130.2."

SECTION 5.(d)  G.S. 105-134.6(c) is amended by adding a new subdivision to read:

"(c)      Additions. - The following additions to taxable income shall be made in calculating North Carolina taxable income, to the extent each item is not included in taxable income:

(11)     Any amount in excess of six hundred dollars ($600.00) that is paid to an unauthorized alien as wages or compensation unless the unauthorized alien is not directly compensated or employed by the taxpayer."

SECTION 5.(e)  This section is effective for taxable years beginning on or after January 1, 2009.

SECTION 5.(f)  G.S. 105-163.1 reads as rewritten:

" 105-163.1.  Definitions.

The following definitions apply in this Article:

(1)       Compensation. - Consideration a payer pays a nonresident individual or individual, a nonresident entity entity, or an unauthorized alien for personal services performed in this State.

(2)       Contractor. - Either Any of the following:

a.         A nonresident individual who performs in this State for compensation other than wages any personal services in connection with a performance, an entertainment, an athletic event, a speech, or the creation of a film, radio, or television program.

b.         A nonresident entity that provides for the performance in this State for compensation of any personal services in connection with a performance, an entertainment, an athletic event, a speech, or the creation of a film, radio, or television program.

c.         An unauthorized alien who performs any personal services in this State for compensation other than wages.

(12a)   Unauthorized alien. - Defined in 8 U.S.C. 1324a(h)(3).

."

 

PART VI. FACILITATE ENFORCEMENT OF FEDERAL IMMIGRATION LAWS

 

SECTION 6.  Article 20 of Chapter 15A of the General Statutes is amended by adding a new section to read:

" 15A-407.  Enforcement of federal immigration laws.

(a)       The Attorney General shall negotiate the terms of a memorandum of understanding between the State of North Carolina and the United States Department of Justice or Department of Homeland Security, as authorized by 8 U.S.C. 1357(g), concerning the enforcement of federal immigration and customs laws, detention and removals, and investigations in the State of North Carolina.

(b)       The memorandum of understanding negotiated pursuant to subsection (a) of this section shall be signed on behalf of the State by the Attorney General and the Governor or as otherwise required by the appropriate federal agency.

(c)       The Secretary of Crime Control and Public Safety shall designate appropriate law enforcement officers to be trained pursuant to the memorandum of understanding provided for in this section. The training shall be funded pursuant to the federal Homeland Security Appropriation Act of 2006, Public Law 109-90, or any subsequent source of federal or State funding.

(d)       A law enforcement officer certified as trained in accordance with the memorandum of understanding provided for in this section may enforce federal immigration and customs laws while performing duties within the scope of the officer's authorized duties.

" 15A-408.  No prohibitions on cooperating with federal officials regarding immigration status.

(a)       No municipality or political subdivision of the State shall adopt any ordinance or policy that limits or prohibits a law enforcement officer, local official, or local government employee from communicating or cooperating with federal officials regarding the immigration status of any person within this State.

(b)       Notwithstanding any other provision of law, no State agency or State official may prohibit or in any way restrict any government entity or official from sending to, or receiving from, the United States Department of Homeland Security information regarding the citizenship or immigration status of any individual.

(c)       Notwithstanding any other provision of law, no person or agency may prohibit, or in any way restrict, a public employee from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:

(1)       Sending this information to, or requesting or receiving such information from, the United States Department of Homeland Security.

(2)       Maintaining such information.

(3)       Exchanging such information with any other federal, state, or local government entity.

(d)       Any person lawfully domiciled in this State may seek a writ of mandamus to compel any noncooperating municipality, State agency, or political subdivision to comply with this section."

 

PART VII. EXPANDING THE DEFINITION OF IDENTITY THEFT TO INCLUDE OBTAINING, POSSESSING, OR USING IDENTIFYING INFORMATION ABOUT ANOTHER PERSON WITH THE INTENT TO FRAUDULENTLY OBTAIN EMPLOYMENT

 

SECTION 7.(a)  G.S. 14-113.20(a) reads as rewritten:  

" 14-113.20.  Identity theft.

(a)       A person who knowingly obtains, possesses, or uses identifying information of another person, living or dead, with the intent to fraudulently represent that the person is the other person for the purposes of making financial or credit transactions in the other person's name, to obtain anything of value, benefit, or advantage, or for the purpose of avoiding legal consequencesany of the following purposes is guilty of a felony punishable as provided in G.S. 14-113.22(a).G.S. 14-113.22(a):

(1)       Making financial or credit transactions in the other person's name.

(2)       Obtaining anything of value, benefit, or advantage.

(3)       Avoiding legal consequences.

(4)       Obtaining employment."

 

PART VIII. SETTING PENALTIES FOR VIOLATIONS OF FEDERAL IMMIGRATION LAWS RELATING TO EMPLOYMENT; MAKING EMPLOYMENT OF ILLEGAL ALIENS UNLAWFUL UNDER STATE LAW; SETTING FORTH THE PENALTIES AND  ENFORCEMENT PROCEDURES; REQUIRING THAT ALL EMPLOYERS THAT REQUIRE BUSINESS OR PRIVILEGE LICENSES USE THE FEDERAL WORK AUTHORIZATION PROGRAM

 

SECTION 8.(a)  Chapter 64 of the General Statutes is amended by adding a new Article to read:

"Article 1.

"Various Provisions Relating to Aliens."

SECTION 8.(b)  G.S. 64-1 through G.S. 64-5 are recodified as Article 1 of  Chapter 64 of the General Statutes, as created by this act.

SECTION 8.(c)  Chapter 64 of the General Statutes is amended by adding a new Article to read:

"Article 2.

"Employment of Unauthorized Aliens.

" 64-10.  Definitions.

The following definitions apply in this Article:

(1)       Agency. - Any agency, department, board, or commission of this State, a county, or city that issues a license for purposes of operating a business in this State.

(2)       Employee. - Any person who performs employment services for an employer pursuant to an employment relationship between the employee and employer.

(3)       Employer. - Any individual or type of organization that transacts business in this State, that has a license issued by an agency in this State, and that employs one or more individuals who perform employment services in this State.

(4)       Federal work authorization program. - Any of the electronic verification of work authorization programs operated by the United States Department of Homeland Security or any equivalent federal work authorization program operated by the United States Department of Homeland Security to verify information of newly hired employees, pursuant to the Immigration Reform and Control Act of 1986 (IRCA), Public Law 99-603.

(5)       Intentionally. - With respect to a result or to particular conduct, acting with the objective of causing that result or engaging in that conduct.

(6)       Knowingly employ an unauthorized alien. - The actions described in 8 U.S.C. 1324a. This term shall be interpreted consistently with any applicable federal rules and regulations.

(7)       License. - Any agency permit, certificate, approval, registration, charter, or similar form of authorization that is required by law and that is issued by any agency for the purpose of operating a business in this State. This term does not include any professional license.

(8)       Unauthorized alien. - An alien who does not have the legal right or authorization under federal law to work in the United States as described in 8 U.S.C. 1324a(h)(3).

" 64-11. Loss of business licenses for violations of federal immigration law.

Any agency or commission that issues a license shall, upon a showing of clear and convincing evidence, summarily revoke any license issued to any entity that has violated any federal immigration law that relates to the employment of unauthorized aliens. If any agency makes a finding to revoke a license pursuant to this section, no other agency shall be required to make a similar finding in order to revoke a license issued by it.

" 64-12.  Intentionally or knowingly employing unauthorized alien prohibited; penalties.

(a)       An employer shall not intentionally employ an unauthorized alien or knowingly employ an unauthorized alien.

(b)       On receipt of a complaint that an employer allegedly intentionally or knowingly employs an unauthorized alien, the Attorney General or county attorney shall investigate whether the employer has violated subsection (a) of this section. When investigating a complaint, the Attorney General or county attorney shall verify the work authorization of the alleged unauthorized alien with the federal government pursuant to 8 U.S.C. 1373(c). A State, county, or local official shall not attempt to independently make a final determination on whether an alien is authorized to work in the United States. An alien's immigration status or work authorization status shall be verified with the federal government pursuant to 8 U.S.C. 1373(c). A person who knowingly files a false and frivolous complaint under this subsection is guilty of a Class 2 misdemeanor.

(c)       If, after an investigation, the Attorney General or county attorney determines that the complaint is not frivolous:

(1)       The Attorney General or county attorney shall notify the United States Customs and Immigration Enforcement of the unauthorized alien.

(2)       The Attorney General or county attorney shall notify local law enforcement agencies of the unauthorized alien.

(3)       The Attorney General shall notify the appropriate county attorney to bring an action pursuant to subsection (d) of this section if the complaint was originally filed with the Attorney General.

(d)       An action for a violation of subsection (a) of this section shall be brought against the employer by the county attorney in the county where the unauthorized alien employee is employed. The county attorney shall not bring an action against any employer for any violation of subsection (a) that occurs before January 1, 2009. A second violation of this section shall be based only on an unauthorized alien who is employed by the employer after an action has been brought for a violation of subsection (a) of this section.

(e)       For a finding of a violation of subsection (a) of this section:

(1)       For a first violation during a three-year period that is a knowing violation of subsection (a) of this section, the court:

a.         Shall order the employer to terminate the employment of all unauthorized aliens.

b.         Shall order the employer to be subject to a three-year probationary period. During the probationary period the employer shall file quarterly reports with the county attorney of each new employee who is hired by the employer at the specific location where the unauthorized alien performed work.

c.         Shall order the employer to file a signed sworn affidavit with the county attorney within three business days after the order is issued. The affidavit shall state the employer has terminated the employment of all unauthorized aliens and that the employer will not intentionally or knowingly employ an unauthorized alien. The court shall order the appropriate agencies to suspend all licenses subject to this subdivision that are held by the employer if the employer fails to file a signed, sworn affidavit with the county attorney within three business days after the order is issued. All licenses that are suspended under this subdivision shall remain suspended until the employer files a signed, sworn affidavit with the county attorney. Notwithstanding any other provision of law, on filing of the affidavit, the suspended licenses shall be reinstated immediately by the appropriate agencies for the purposes of this subdivision. The licenses that are subject to suspension under this subdivision are all licenses that are held by the employer and that are necessary to operate the employer's business at the employer's business location where the unauthorized alien performed work. If a license is not necessary to operate the employer's business at the specific location where the unauthorized alien performed work, but a license is necessary to operate the employer's business in general, the licenses that are subject to suspension under this subdivision are all licenses that are held by the employer at the employer's primary place of business. On receipt of the court's order and notwithstanding any other provision of law, the appropriate agencies shall suspend the licenses according to the court's order. The court shall send a copy of the court's order to the Attorney General,and the Attorney General shall maintain the copy pursuant to subsection (f) of this section.

d.         May order the appropriate agencies to suspend all licenses described in sub-subdivision c. of this subdivision that are held by the employer for a period not to exceed 10 business days. The court shall base its decision to suspend under this sub-subdivision on any evidence or information submitted to it during the action for violation of this section and shall consider the following factors, if relevant:

1.         The number of unauthorized aliens employed by the employer.

2.         Any prior misconduct by the employer.

3.         The degree of harm resulting from the violation.

4.         Whether the employer made good faith efforts to comply with any applicable requirements.

5.         The duration of the violation.

6.         The role of the directors, officers, or principals of the employer in the violation.

7.         Any other factors the court deems appropriate.

(2)       For a first violation during a five-year period that is an intentional violation of subsection (a) of this section, the court shall do all of the following:

a.         Order the employer to terminate the employment of all unauthorized aliens.

b.         Order the employer to be subject to a five-year probationary period. During the probationary period the employer shall file quarterly reports with the county attorney of each new employee who is hired by the employer at the specific location where the unauthorized alien performed work.

c.         Order the appropriate agencies to suspend all licenses, described in sub-subdivision d. of this subdivision that are held by the employer for a minimum of 10 days. The court shall base its decision on the length of the suspension under this sub-subdivision on any evidence or information submitted to it during the action for a violation of this subsection and shall consider the following factors, if relevant:

1.         The number of unauthorized aliens employed by the employer.

2.         Any prior misconduct by the employer.

3.         The degree of harm resulting from the violation.

4.         Whether the employer made good faith efforts to comply with any applicable requirements.

5.         The duration of the violation.

6.         The role of the directors, officers, or principals of the employer in the violation.

7.         Any other factors the court deems appropriate.

d.         Order the employer to file a signed, sworn affidavit with the county attorney. The affidavit shall state that the employer has terminated the employment of all unauthorized aliens and that the employer will not intentionally or knowingly employ an unauthorized alien. All licenses that are suspended under this subdivision shall remain suspended until the employer files a signed, sworn affidavit with the county attorney. For the purposes of this sub-subdivision, the licenses that are subject to suspension under this sub-subdivision are all licenses that are held by the employer and that are necessary to operate the employer's business at the employer's business location where the unauthorized alien performed work. If a license is not necessary to operate the employer's business at the specific location where the unauthorized alien performed work, but a license is necessary to operate the employer's business in general, the licenses that are subject to suspension under this sub-subdivision are all licenses that are held by the employer at the employer's primary place of business. On receipt of the court's order and notwithstanding any other law, the appropriate agencies shall suspend the licenses according to the court's order. The court shall send a copy of the court's order to the Attorney General, and the Attorney General shall maintain the copy pursuant to subsection (f) of this section.

(3)       For a second violation of subsection (a) of this section during the applicable period of probation, the court shall order the appropriate agencies to permanently revoke all licenses that are held by the employer and that are necessary to operate the employer's business at the employer's business location where the unauthorized alien performed work. If a license is not necessary to operate the employer's business at the specific location where the unauthorized alien performed work, but a license is necessary to operate the employer's business in general, the court shall order the appropriate agencies to permanently revoke all licenses that are held by the employer at the employer's primary place of business. On receipt of the order and notwithstanding any other law, the appropriate agencies shall immediately revoke the licenses.

(f)        The Attorney General shall maintain copies of court orders that are received pursuant to subsection (e) of this section and shall maintain a database of the employers who have a first violation of subsection (a) of this section and make the court orders available on the Attorney General's Web site.

(g)       On determining whether an employee is an unauthorized alien, the court shall consider only the federal government's determination pursuant to 8 U.S.C. 1373(c). The federal government's determination creates a rebuttable presumption concerning the employee's legal status. The court may take judicial notice of the federal government's determination and may request the federal government to provide automated or testimonial verification pursuant to 8 U.S.C. 1373(c).

(h)       For the purposes of this section, proof of verifying the employment authorization of an employee through the federal work authorization program creates a rebuttable presumption that an employer did not intentionally or knowingly employ an unauthorized alien.

(i)        For the purposes of this section, an employer who establishes that it has complied in good faith with the requirements of 8 U.S.C. 1324a(b) establishes an affirmative defense that the employer did not intentionally or knowingly employ an unauthorized alien.

" 64-13. Article does not require action that is contrary to federal or State law.

This Article shall not be construed to require an employer to take any action that the employer believes in good faith would violate federal or State law.

" 64-14. Employers must use federal work authorization program.

After December 31, 2008, every employer, after hiring an employee, shall verify the employment eligibility of the employee through the federal work authorization program.

" 64-15. Discharge of authorized employee while employer simultaneously employs an unauthorized alien is an unfair trade practice.

The discharge of any United States citizen or permanent resident alien employee by an employer of this State, who, on the date of the discharge, employed an unauthorized alien, shall be an unfair trade practice as defined in G.S. 75-1.1, and the discharged employee shall have a right of action under G.S. 75-16."

 

PART IX. ESTABLISHING IMMIGRATION ASSISTANCE REGISTRATION ACT

 

SECTION 9.  The General Statutes are amended by adding a new Chapter to read:

"Chapter 84B.

"Immigration Assistance Registration Act.

" 84B-1.  Short title.

This Chapter shall be known as the 'Immigration Assistance Registration Act.'

" 84B-2.  Purpose.

The purpose of this Chapter is to establish and enforce ethical standards for immigration assistance services provided by individuals who are not licensed attorneys.

" 84B-3.  Definitions.

The following definitions apply in this Chapter:

(1)       Compensation. - A fee, property, services, promise of payment, or anything else of value.

(2)       Employed by. - When a person is on the payroll of an employer and the employer deducts social security and withholding taxes from the employee's paycheck or when a person receives compensation from the employer on a commission basis or as an independent contractor.

(3)       Immigration assistance services. - Any information or action provided or offered to customers or prospective customers related to immigration matters. Immigration assistance services shall not include legal advice recommending a specific course of legal action or providing any other assistance that requires legal analysis, legal judgment, or interpretation of the law.

(4)       Immigration matter. - Any proceeding, filing, or action affecting the nonimmigrant, immigrant, or citizenship status of any person arising under either of the following:

a.         Immigration and naturalization law, an executive order, or presidential proclamation of the United States or any foreign country.

b.         Action of the United States Department of Labor, the United States Department of State, the United States Department of Homeland Security, or the United States Department of Justice.

" 84B-4.  Registration required.

(a)       Any person who provides or offers to provide immigration assistance services in this State shall register with the Secretary of State. The Secretary of State shall keep a registry of all persons providing or offering to provide immigration assistance services, showing for each the date of registration, the registrant's name, the address of the registrant's principal place of business, and the name of the registrant's business or employer, if applicable. The Secretary of State shall maintain the registry, and the registry shall be open to public inspection.

(b)       The Secretary of State may collect a fee from any person providing immigration assistance services not exempt under this Chapter in an amount not to exceed twenty dollars ($20.00) to cover the administrative costs associated with establishing and maintaining the registry.

(c)       Nothing in this Chapter shall regulate any business to the extent that the regulation is prohibited or preempted by federal law.

(d)       Nothing in this Chapter shall prohibit a local city or county from requiring that a person offering immigration assistance services obtain a business license pursuant to a local ordinance.

(e)       The Secretary of State may adopt rules to implement, administer, and enforce this Chapter.

" 84B-5.  Exemptions.

The following persons are exempt from this Chapter:

(1)       An attorney licensed to practice law in this State or an attorney licensed to practice law in any other state or territory of the United States or in any foreign country when acting with the approval of a judge having lawful jurisdiction over an immigration matter.

(2)       A legal intern, clerk, paralegal, or person in a similar position employed by and under the direct supervision of a licensed attorney meeting the requirements in subdivision (1) of this section and providing immigration assistance services.

(3)       A nonprofit organization recognized by the Board of Immigration Appeals under 8 C.F.R. 292.2(a) and employees of those organizations accredited under 8 C.F.R. 292.2(d).

(4)       Any organization employing or desiring to employ an alien or nonimmigrant alien, where the organization, its employees, or its agents provide advice or assistance in immigration matters to alien or nonimmigrant alien employees or potential employees without compensation from the individuals to whom the advice or assistance is provided.

" 84B-6.  Immigration assistance services permitted.

A person providing or offering to provide immigration assistance services may perform the following services only:

(1)       Complete a government agency form requested by the customer if the completion of that form does not involve the use of legal judgment.

(2)       Transcribe responses on a government agency form related to an immigration matter without advising a customer as to his or her answers on the form.

(3)       Translate information on forms for a customer and translate the customer's answers to questions posed on the forms.

(4)       Secure for a customer supporting documents currently in existence, such as a birth certificate or marriage certificate, when needed to submit with government agency forms.

(5)       Translate documents from a foreign language into English.

(6)       Notarize signatures on government agency forms if the person performing the service is a notary public commissioned in this State and is lawfully present in the United States.

(7)       Make referrals, without a fee, to attorneys who represent clients in immigration matters.

(8)       Prepare or arrange for the preparation of photographs and fingerprints.

(9)       Arrange for the performance of medical testing, including X-rays and AIDS tests, and arrange for the test results to be obtained.

(10)     Conduct English language and civics courses.

(11)     Perform any other services the Secretary of State, by rule, deems appropriate pursuant to this Chapter.

" 84B-7.  Posting signs; advertisements.

(a)       Any person providing or offering to provide immigration assistance services who is not exempt under this Chapter shall post signs prominently at his or her place of business which set forth information in English and in every other language in which the person provides or offers to provide immigration assistance services. The signs shall contain the following statement in boldface type and capital letters:  'I AM NOT AN ATTORNEY LICENSED TO PRACTICE LAW AND MAY NOT GIVE LEGAL ADVICE OR ACCEPT FEES FOR LEGAL ADVICE.' Each language in which the person provides or offers to provide immigration assistance services shall be on a separate sign, and each sign shall be at least 12 inches by 17 inches.

(b)       Every person providing immigration assistance services who is not an attorney and advertises immigration assistance services in a language other than English, whether by radio, television, signs, pamphlets, newspapers, or other written communication, with the exception of a single desk plaque, shall include in the document, advertisement, stationery, letterhead, business card, or other comparable written material the following notice in English and the language in which the written communication appears:  'I AM NOT AN ATTORNEY LICENSED TO PRACTICE LAW AND MAY NOT GIVE LEGAL ADVICE OR ACCEPT FEES FOR LEGAL ADVICE.' If the notice is in writing, the notice must appear in a conspicuous manner, and if the advertisement is by radio or television, the statement may be modified but must include substantially the same message.

" 84B-8.  Prohibited conduct.

A person providing immigration assistance services who is not exempt under this Chapter shall not:

(1)       Accept payment in exchange for providing legal advice or any other assistance that requires legal analysis, legal judgment, or interpretation of the law.

(2)       Refuse to return documents supplied by, prepared on behalf of, or paid for by the customer upon the request of the customer. These documents must be returned upon request even if there is a fee dispute between the immigration assistant and the customer.

(3)       Represent, advertise, or use any titles or credentials, including 'notary public' or 'immigration consultant,' while providing assistance in immigration matters that create the belief that the person possesses special professional skills or is authorized to provide advice on an immigration matter. However, a certified notary public may use the term 'notary public' if the use is accompanied by the statement that the person is not an attorney. The term 'notary public' shall not be translated to another language.

(4)       In any document, advertisement, stationery, letterhead, business card, or other comparable written material, literally translate from English into another language terms or titles, including 'notary public,' 'notary,' 'licensed,' 'attorney,' 'lawyer,' or any other term that implies the person is an attorney.

(5)       Provide legal advice, recommend a specific course of legal action, or provide any other assistance that requires legal analysis, legal judgment, or interpretation of the law.

(6)       Make any misrepresentation or false statement, directly or indirectly, to influence, persuade, or induce patronage.

(7)       Violate any provision of this Chapter.

" 84B-9.  Violations; penalties.

(a)       Any person who violates any provision of this Chapter shall be guilty of a Class 2 misdemeanor for a first offense and a Class 1 misdemeanor for any subsequent offenses committed within five years of a previous conviction for the same offense.

(b)       Violations of this Chapter may result in a fine of up to one thousand dollars ($1,000) for each violation. A fine charged pursuant to this Chapter shall not preempt or preclude additional appropriate civil or criminal penalties."

 

PART X. SEVERABILITY CLAUSE

 

SECTION 9.  If any provision of this act or its application is held invalid, the invalidity does not affect other provisions or applications of this act that can be given effect without the invalid provisions or application, and to this end the provisions of this act are severable.

 

PART XI. EFFECTIVE DATES

 

SECTION 10.  Sections 4 and 5 of this act become effective January 1, 2009. Sections 2 and 7 of this act become effective December 1, 2008. All remaining sections of this act become effective October 1, 2008.